Connecticut Enacts Medical Marijuana Law

September 14, 2012

Connecticut Governor Dan Malloy recently signed into law Public Act No. 12-55, “An Act Concerning the Palliative Use of Marijuana,” which permits the statewide “palliative use” of marijuana by “qualifying patients.” The majority of the provisions in this new law will take effect on October 1, 2012. This alert highlights key areas of this new law that may impact Connecticut employers.

1. The Act’s Definition of a “Qualifying Patient” and the “Palliative Use” of Marijuana.

A “qualifying patient” who may use marijuana under this law is defined as a Connecticut resident who is at least 18 years old and has been diagnosed by a physician as having a “debilitating medical condition.” A “debilitating medical condition” is defined as: (a) cancer, glaucoma, positive status for human immunodeficiency virus or acquired immune deficiency syndrome, Parkinson's disease, multiple sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, epilepsy, cachexia, wasting syndrome, Crohn's disease, posttraumatic stress disorder; or (b) any medical condition, medical treatment or disease approved by the Connecticut Department of Consumer Protection (pursuant to regulations that it will issue in accordance with this new law). A qualifying patient must, among other things, (a) obtain a written certification from a physician and (b) register with the Connecticut Department of Consumer Protection prior to engaging in the palliative use of marijuana.

The “palliative use” of marijuana is defined under the law as the acquisition, distribution, transfer, possession, use or transportation of marijuana or paraphernalia relating to marijuana, including the transfer of marijuana and paraphernalia relating to marijuana from the patient's primary caregiver to the qualifying patient, to alleviate a qualifying patient's symptoms of a debilitating medical condition or the effects of such symptoms.

2. Highlights of the Act’s Impact on Employers.

Qualifying patients who comply with their obligations under the new law are generally protected under state law[1] from arrest or prosecution, or being penalized in any manner, including, but not limited to, being subject to any civil penalty, or denied any right or privilege, for the palliative use of marijuana. Additionally, unless required by federal law or to obtain federal funding, employers cannot refuse to hire, discharge, penalize or threaten an individual solely on the basis of such individual’s status as a qualifying patient or primary caregiver for such patient under the law. Employers may, however, prohibit the use of intoxicating substances during work hours and discipline an employee for being under the influence of intoxicating substances during work hours. Employers also do not have an obligation under this law to provide health insurance coverage for the palliative use of marijuana.

Additionally, the law does not excuse: (a) any palliative use of marijuana that endangers the health or well-being of a person other than the qualifying patient or his or her primary caregiver; or (b) the ingestion of marijuana (i) in a motor bus or a school bus or in any other moving vehicle, (ii) in the workplace, (iii) on any school grounds or any public or private school, dormitory, college or university property, (iv) in any public place, or (v) in the presence of a person under the age of eighteen.

3. Next Steps.

As several commentators have noted, the Act does not currently appear to provide a private right of action for individuals who are discriminated against in violation of this new law. There is also a lack of guidance for employers regarding the way they should manage drug testing procedures and inquiries in light of this new law, and restrictions they can impose on the possession of marijuana in the workplace. It is likely that case law and Connecticut administrative agencies will provide guidance in these areas in the future.

In the interim, Connecticut employers should:

review their current policies and practices to determine whether: (a) they meet any of the exceptions in this new law; and/or (b) any changes are needed;

educate their managers and individuals involved in any drug testing programs regarding the protections in this new law for qualifying patients and their primary caregivers; and

remain mindful that many of the underlying health conditions that qualify an individual to use marijuana under this law may also be protected under other federal and state laws prohibiting discrimination against individuals with disabilities.

Please do not hesitate to contact any of our attorneys if you have any questions or would like any additional information.

[1] State medical marijuana laws do not provide immunity from federal prosecution.